신용장 및 독립적 은행보증 관련 지급금지가처분

The principles of independence and abstraction apply to letters of credit and independent bank guarantees, in that these instruments are not affected by the fate of the underlying transactions. Though it cannot be denied that exceptions to the principles of independence and abstraction are necessary on a case-by-case basis for individual fairness, these exceptions should be recognized only with great caution due to the function and benefits of letters of credit and independent bank guarantees. However, an analysis of Korean lower-court decisions regarding injunctions against payment on letters of credit and independent bank guarantees revealed that a considerable percentage of these decisions issued injunctions against payment based on exceptions to the principles of independence and abstraction. This was because the focus of the hearings was generally on the wrongfulness of the claims, the issuing banks were not aggressive in contesting the claims, and the beneficiaries found it difficult to intervene in the proceedings. The problem of governing law also seems to have played a role. Therefore court hearings in these cases should make findings not only on the wrongfulness of the claims but also on the protection of innocent third parties. Additionally, interested parties such as beneficiaries should be represented, and attention should be paid to the governing law that applies to each stage of the decision. Korean courts must show increased caution in recognizing exceptions to the principles of independence and abstraction by making the abovementioned changes to hearings and decisions. In the long run, such changes will also contribute to raising the profile of Korean courts and financial institutions in international transactions.